March/April 2023 Issue

Also in this issue: Wisconsin Supreme Court Addresses Dark Store Evidence & Presumption of Correctness in Tax Assessment Claims     |     Public Service Commission Distributes $10 Million in Energy Innovation Grants     |     Wisconsin Public Records Law: Risk Of Attorney’s Fees Remains, Despite Voluntary Release     |     Denial of Permit Reversed on Certiorari Review as Being Based on an Incorrect Theory of Law

Public Service Commission Rules on Third Party Decisions

Richard Heinemann | 03.30.23

The Public Service Commission of Wisconsin (“PSCW”) has ruled on two closely watched proceedings pertaining to the following question: can third-party developers own or lease renewable energy facilities on the property of customers in utility territory without being regulated as public utilities (MLN, September/​October)?

In Dockets 9300-DR-106 (“Vote Solar”) and 9300-DR-105 (“MREA”), solar developers sought declaratory rulings from the PSCW on this question. The petitions were opposed by public utilities, including a coalition of municipal utilities led by Municipal Electric Utilities of Wisconsin (“MEUW”), who argued that installing renewable energy facilities in utility territory owned or leased by anyone other than customers is prohibited by existing law. 

The PSCW issued its Final Decision in the Vote Solar proceeding last month. The ruling permitted only a single member, North Wind Renewable Energy Cooperative (“North Wind”), to build and lease a small solar installation on the home of a single residential customer in utility territory. The ruling thus fell short of the broad allowance originally sought by the petitioner that would have allowed a new class of electric service providers to own or lease similar facilities to utility customers in utility territory. 

Notwithstanding the narrow ruling, the public utilities, including the MEUW-led coalition, have sought rehearing or reopening on the grounds that there was insufficient evidence in the record on the full scope of North Wind’s business activities to provide a basis for the PSCW’s ruling on North Wind’s public utility status. 

In MREA, the PSCW declined to issue a final decision, instead reopening the record and ordering the petitioner, Midwest Renewable Energy Association (“MREA”), to provide additional information on several issues, including (i) the nature of the class of customers MREA or its members intend to serve; (ii) how the equipment to be owned by MREA for its behind-the-meter solar services differs from equipment used to prove solar service in front of the meter; and (iii) the function, intent, and purpose of the various technologies listed by MREA in its petition that would be the beneficiary of third-party financing if authorized by the PSCW. No schedule has been set for this new phase of the proceeding.